United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 22, 2001 Decided June 5, 2001

No. 00-5175

Truckers United for Safety, et al.,
Appellants

v.

Kenneth M. Mead, The Inspector General,
Department of Transportation,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 98cv02793)

Anthony J. McMahon argued the cause and filed the briefs
for appellants. Edward M. McClure entered an appearance.

Eric M. Jaffe, Assistant United States Attorney, argued
the cause for appellee. With him on the brief were Wilma A.
Lewis, United States Attorney at the time the brief was filed,
and R. Craig Lawrence, Assistant United States Attorney.


Before: Edwards, Chief Judge, Williams and Henderson,
Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge: In keeping with its mission to
enforce motor carrier safety regulations, the Office of Motor
Carriers ("OMC") initiated compliance review investigations
into appellants' record keeping practices. As part of that
effort, the Department of Transportation's Office of Inspector
General ("DOT OIG") was engaged to use its purported
search and seizure authority to obtain appellants' business
records. Under the legal framework in effect at the time of
the underlying events, the Inspector General Act of 1978,
Pub. L. No. 95-452, 92 Stat. 1101 (1978) ("Inspector General
Act" or "Act"), the Inspector General ("IG") had no authority
to engage in the kinds of criminal investigations at issue
here-criminal investigations that are at the heart of an agen-
cy's general compliance enforcement responsibilities. We
therefore hold that appellants are entitled to the return of
records and other property seized from them during the IG's
ultra vires investigations and seizures.

Following the IG's investigation of appellants, and subse-
quent to appellants' filing of the lawsuit in this case, Congress
enacted the Motor Carrier Safety Improvement Act of 1999,
Pub. L. No. 106-159, 113 Stat. 1748, 1773 (1999) ("MCSIA").
The District Court found that the MCSIA granted the IG
new authority to conduct investigations of motor carriers'
fraudulent and criminal activities related to DOT's operations
and programs. Truckers United for Safety v. Mead, 86
F. Supp.2d 1, 19 (D.D.C. 2000). In reaching this conclusion,
the District Court correctly rejected the IG's argument that
the 1999 law merely clarified that his office always possessed
the authority to conduct such investigations. Id. at 19 n.7. It
is also undisputed that the MCSIA does not retroactively
authorize IG investigations that were conducted prior to its
enactment. Therefore, the District Court erred in holding
that, although the IG violated the Inspector General Act, he
was nonetheless entitled to summary judgment because the


actions taken by the IG in 1998 are authorized by the 1999
law.

Finally, appellants contend that, because there is a threat
that the office of the IG will exceed its authority under the
MCSIA, we should construe the new law narrowly and then
grant an injunction preventing the IG from violating the
statute in the future. Although appellants are entitled to
relief for unlawful actions taken pursuant to the Inspector
General Act, there is no live dispute under the MCSIA.
Accordingly, we vacate the District Court's decision insofar as
it purports to construe the MCSIA, and we dismiss appel-
lants' claims resting on their construction of the MCSIA; the
issues focused on the meaning and future application of the
MCSIA are not ripe for review.

I. Background

A. Statutory Framework

1. Inspector General Act

The Inspector General Act established the Office of Inspec-
tor General ("OIG") in order to facilitate "objective inquiries
into bureaucratic waste ... and mismanagement." NASA v.
Fed. Labor Relations Auth., 527 U.S. 229, 240 (1999). The
IG's mandate focuses on systemic agency-wide issues. Con-
gress created the OIG to "provide leadership and coordina-
tion and recommend policies for activities designed ... to
promote economy, efficiency, and effectiveness in the adminis-
tration of, and ... to prevent and detect fraud and abuse in,
such programs and operations." 5 U.S.C. App. 3 s 2(2).
There are limits to the IG's powers, however. Most promi-
nently, the Act specifically prohibits the OIG from assuming
"program operating responsibilities." 5 U.S.C. App. 3
s 9(a)(2).

The general parameters of the Inspector General Act are
fairly clear cut. First, Congress consolidated pre-existing
agency offices into the OIG, thereby transferring the various
offices' investigative duties to the OIG. In the case of the
DOT, Congress mandated that the responsibilities of offices
such as the "Office of Investigations and Security" and the
"Office of Audit" be consolidated into the OIG. 5 U.S.C. App.

3 s 9(a)(1)(k). Second, the Act defines the IG's core role as
preventing fraud and abuse, by conducting audits and investi-
gations relating to agency programs and operations. 5
U.S.C. App. 3 ss 2(1), 4(a)(1), 6(a)(2). Finally, Congress
authorized agencies to make discretionary transfers of duties
to the OIG. However, discretionary transfers of authority
only can be made if the duties are properly related to the
functions of the IG, further the purpose of the Act, and do not
constitute program operating responsibilities. 5 U.S.C. App.
3 s 9(a)(2).

Congress structured the OIG to promote independence and
objectivity. The Inspector General Act indicates that Inspec-
tors General will be appointed directly by the President and
confirmed by the Senate. 5 U.S.C. App. 3 s 3(a). An IG is
under the general supervision of the head of the agency, but
the head of the agency may not interfere with any IG
investigation. Id. In a similar vein, Inspectors General
report directly to Congress regarding their agencies. Id.
Furthermore, the OIG has investigatory means at its dispos-
al, such as subpoena power and access to regulated motor
carriers' records to aid it in fulfilling its mission. 5 U.S.C.
App. 3 ss 3(a), 6(a). The OIG also may, in appropriate
circumstances, conduct searches and seizures. See 28 C.F.R.
s 60.3.

In 1999 Congress passed the MCSIA which further ad-
dresses the power of the DOT IG. In particular, s 228 of the
MCSIA states:

(a) IN GENERAL.--The statutory authority of the In-
spector General of the Department of Transportation
includes authority to conduct, pursuant to Federal crimi-
nal statutes, investigations of allegations that a person or
entity has engaged in fraudulent or other criminal activi-
ty relating to the programs and operations of the Depart-
ment or its operating administrations.

(b) REGULATED ENTITIES.--The authority to con-
duct investigations referred to in subsection (a) extends
to any person or entity subject to the laws and regula-
tions of the Department or its operating administrations,


whether or not they are recipients of funds from the
Department or its operating administrations.

s 228, 113 Stat. at 1773. This statutory provision was not in
effect when the IG investigated appellants.

2. Operations of the Department of Transportation

Under the Motor Carrier Safety Act of 1984, Pub. L. No.
98-554, 98 Stat. 2829 (1984), the Secretary of the DOT has
authority to issue regulations governing vehicle safety. See,
e.g., 49 U.S.C. s 31133(a). The Secretary's authority includes
the power to initiate an investigation, subpoena witnesses and
records, and inspect motor carriers or documents belonging
to motor carriers. 49 U.S.C. ss 502(a), 504(c)(1)-(2), 506(a).
The IG has no responsibility in these areas of operation.

The Secretary of Transportation has delegated this authori-
ty to the Federal Highway Administration ("FHA"), which in
turn has issued federal motor carrier safety regulations. See
49 U.S.C. s 104; 49 C.F.R. ss 350.1-399.207. Until January
1, 2000, FHA's Office of Motor Carriers administered the
regulation of interstate motor carriers. However, pursuant
to the MCSIA, responsibility for administering regulations
governing interstate motor carriers was transferred to the
Federal Motor Carrier Safety Administration ("FMCSA").

The Motor Carrier Safety Act of 1984 authorizes the FHA
to enforce safety regulations and conduct compliance reviews.
49 U.S.C. s 31115. The FHA can itself bring a civil action or
request that the Attorney General enforce a regulation or
prosecute an alleged violator. 49 U.S.C. s 507 (b). The Act
prescribes both civil and criminal penalties for violations of
the safety regulations. 49 U.S.C. s 521. Although the FHA
is authorized to oversee motor carrier compliance with safety
regulations, the Motor Carrier Safety Act of 1984 does not
authorize the FHA to engage in searches and seizures.

B. Underlying Events

During the period preceding the events at issue in this
case, the DOT OIG and the OMC embarked on a joint project
reviewing motor carrier operations. See Joint OIG/OMC
Review of Motor Carrier Operations, reprinted in J.A. 40.

The "objective" of the joint project was "to combine the
efforts of OIG and OMC staffs in a joint investigative review
of specific motor carriers to create a greater deterrence to
motor carrier violations of the Federal Motor Carrier Safety
Regulations." Id. The effort targeted "all motor carrier
operating areas subject to falsification and having a direct
impact on safety," including drivers' hours of service, driver
medical certificates and testing for drugs. Id. The docu-
ment describing the joint project specifically noted that the
"focus of the review will not be on OMC operations." Id.
Under this project, according to appellees, the OMC engages
in regulatory compliance reviews of motor carriers and refers
egregious violators to the IG. The IG pursues criminal
investigation of the misconduct.

Appellants, Florilli, Northland, Kistler, Lone Wolf, and
K&C, individual trucking companies, each have been investi-
gated by the DOT IG. The record on appeal describes events
involving K & C and Lone Wolf, companies operating from
the same location, to illustrate the role the IG played in
investigating appellants. On July 13, 1998 the OMC sent an
investigator to K & C and Lone Wolf to conduct a compliance
review. Subpoena (July 14, 1998), reprinted in J.A. 66.
Lone Wolf believed that the review had been triggered by a
complaint filed by a disgruntled driver. DOT asserted that
the investigation was an attempt to uncover falsification of
"hours of service" logs, that is, records of the number of
consecutive hours drivers are on the road without a rest.
The Company refused to cooperate with the compliance re-
view, although it agreed to comply with the investigation of
the underlying complaint. Letter from Lone Wolf Counsel,
reprinted in J.A. 54. On July 14, 1998 the OMC served a
subpoena on the companies demanding that the companies
produce all documents necessary to the investigation. Sub-
poena (July 15, 1998), reprinted in J.A. 66. The companies
refused to comply. On October 22, 1998 a special agent of
the DOT IG, Eric Johnson, obtained a warrant to search the
premises of the companies. Search Warrant (Oct. 22, 1998),
reprinted in J.A. 73. On the following day, Johnson executed
the search warrant and seized the relevant documents. See
Declarations, reprinted in J.A. 57, 58, 60, 62, 64, 65.


C. Procedural History

Truckers United for Safety ("TUFS"), a nonprofit organiza-
tion of motor carriers, along with the individually named
companies, filed suit in District Court alleging that the DOT
IG lacked legal authority to engage in the contested compli-
ance review investigations. Appellants sought preliminary
injunction and declaratory relief because, they argued, the IG
was not authorized to engage in DOT operations, specifically
investigation of standard compliance with federal motor carri-
er safety regulations. Appellants also sought the return of
any seized materials that had not already been returned by
the Government. Appellee filed a motion for summary judg-
ment, asserting that TUFS lacked standing and that the DOT
IG acted within its authority in authorizing the investigations.

The District Court found that the Inspector General Act
did not authorize the DOT IG to conduct investigations into
motor carrier compliance. Truckers United for Safety v.
Mead, 86 F. Supp.2d at 19. As a result the IG had no
authority to search appellants' premises or seize their rec-
ords. Id. However, the District Court found that the
MCSIA amended the Inspector General Act, and constituted
a new grant of authority broad enough to encompass the kind
of investigations at issue here. Id. Although the OIG did
not have the authority to investigate appellants as part of a
compliance review in 1998, the District Court explained that
the MCSIA has given the IG authority to do so in the future.
Id. The District Court therefore concluded that the IG was
entitled to summary judgment on the merits. Id. Because
appellants' claims arise from an appeal of a summary judg-
ment ruling, we review the District Court's ruling de novo.
See, e.g., Ctr. for Auto Safety v. NHTSA, 244 F.3d 144, 147
(D.C. Cir. 2001).

II. DISCUSSION

A. Standing

The IG has asserted, and the District Court agreed, that
TUFS lacks standing to pursue claims on behalf of its mem-


bers, the individual trucking companies. We find this argu-
ment to be plainly wrong.

TUFS asserts no basis for organizational standing, see
Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982),
Am. Trucking Ass'ns v. United States Dep't of Transp., 166
F.3d 374, 386 (D.C. Cir. 1999), because it asserts no cogniza-
ble injury to the organization or its activities. It is clear,
however, that TUFS has asserted more than enough to
satisfy the requirements of representational standing. See,
e.g., Hunt v. Washington State Apple Adver. Comm'n, 432
U.S. 333, 342-43 (1977) (setting out the requirements for
associations to have standing); Am. Trucking, 166 F.3d at
385; Int'l Bhd. of Teamsters v. Pena, 17 F.3d 1478, 1482-83
(1994).

TUFS asserts, and the Government does not dispute, that
the individual trucking companies are members of the associ-
ation. TUFS further claims that the IG injured individual
trucking companies by conducting unlawful investigations and
seizing their records. These claims, which are substantial
and well documented, easily satisfy the injury/causation/re-
dressability requirements of Article III of the Constitution.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992). Furthermore, it is uncontested that TUFS' members
have standing to sue in their own right; the interests that
TUFS seeks to protect are indisputably germane to the
organization's purpose; and neither the claims asserted nor
the relief requested requires the participation in the lawsuit
of each of the organization's individual members. Hunt, 432
U.S. at 343. TUFS therefore has representational standing
to sue on behalf of its members.

B. The Legality of the IG's Investigations and Seizures in
1998 Pursuant to the Inspector General Act

The principal issue in this case is whether the IG had
authority in 1998 to investigate motor carriers' compliance
with safety regulations. The District Court held that the
legislative history and structure of the Inspector General Act
make it plain that Congress did not intend to grant the IG
authority to conduct investigations constituting an integral


part of DOT programs. The trial court also held that the
Secretary of DOT could not transfer to the IG his authority
to investigate motor carriers' compliance with federal motor
carrier safety regulations. The District Court therefore con-
cluded that the IG acted outside the scope of his authority in
conducting investigations of motor carriers' compliance with
the federal safety regulations. We agree with this conclusion.

The IG has authority to investigate the DOT's administra-
tion of programs and operations. In carrying out its charge,
"honest cooperation" between the IG and agency personnel
can be expected. NASA, 527 U.S. at 242. The IG, however,
is not authorized to conduct investigations as part of enforc-
ing motor carrier safety regulations--a role which is central
to the basic operations of the agency. See, e.g., Winters
Ranch P'ship v. Viadaro, 123 F.3d 327 (5th Cir. 1997) (up-
holding IG's subpoena because it was part of an investigation
to test the effectiveness of the agency's conduct of a program
and not part of program operating responsibilities); Burling-
ton N. R.R. Co. v. Office of Inspector General, 983 F.2d 631
(5th Cir.1993) (refusing to enforce IG's subpoena because
Inspectors General have no authority to engage in regulatory
compliance investigations that are part of an agency's general
functioning).

The record in this case makes it clear that, when he
investigated the plaintiffs and seized their records, the DOT
IG was not engaged in an investigation relating to abuse and
mismanagement in the administration of the DOT or an audit
of agency enforcement procedures or policies. Rather, the
DOT IG merely lent his search and seizure authority to
standard OMC enforcement investigations. In other words,
the DOT IG involved himself in a routine agency investigation
that was designed to determine whether individual trucking
companies were complying with federal motor carrier safety
regulations. This was beyond his authority.

Under 5 U.S.C. App. 3 s 9(a)(1)(K), the Office of Investiga-
tions and Security, Office of Audit of the Department, the
Offices of Investigations and Security, Federal Aviation Ad-
ministration, and External Audit Divisions, Federal Aviation


Administration, the Investigations Division and the External
Audit Division of the Office of Program Review and Investi-
gation, Federal Highway Administration, and the Office of
Program Audits, Urban Mass Transportation Administration
were consolidated as part of the OIG. Congress did not,
however, indicate that these investigative units were to con-
duct investigations into motor carrier compliance with safety
regulations or that consolidation of these offices authorized
the OIG to engage in criminal investigations of particular
motor carriers, in contravention of the Inspector General Act.
5 U.S.C. App. 3 s 9(a)(2). The DOT IG was not authorized,
pursuant to the Act's consolidation of duties, to search appel-
lants' premises and seize their records as part of a compliance
review which was under the jurisdiction of the FHA.

Finally, under 5 U.S.C. App. 3 s 9(a)(2), the Secretary of
DOT may transfer additional powers and duties to the IG
beyond those responsibilities specifically defined in the In-
spector General Act. However, the Secretary's transfer of
authority is explicitly limited to exclude matters that consti-
tute "program operating responsibilities." Id. As the Dis-
trict Court correctly found, there was no valid transfer of
authority in this case.

On the record at hand, there can be no doubt that the IG
violated the Inspector General Act when he conducted the
disputed investigations and seizures of appellants' records in
1998. The actions of the IG were ultra vires, causing injury
to appellants for which they are entitled to relief.

C. Actions Arising Under the MCSIA

The District Court found that, as of December 1999, after
the occurrence of the investigations and seizures that are in
dispute in this case, the IG was granted authority pursuant to
the MCSIA "to conduct investigations of motor carri-
ers' fraudulent and criminal activities that are related to the
DOT's operations and programs." Truckers United for Safe-
ty v. Mead, 86 F. Supp.2d at 19. The District Court's opinion
thus appears to suggest that the enactment of the MCSIA
mooted appellants' challenges to the IG's unlawful actions
taken before its passage. Id. That holding is erroneous and


it is hereby reversed. The District Court also denied appel-
lants' request for declaratory and injunctive relief that would
bar the IG from engaging in unlawful actions in the future
pursuant to the MCSIA. Because appellants' claims rest on a
fear of injuries that have yet to arise under the MCSIA, we
dismiss them as unripe.

The IG argues that even though the MCSIA does not
directly govern the 1998 investigations, the MCSIA provides
evidence that, even in 1998 before the MCSIA was enacted,
the OIG had authority to investigate appellants. To substan-
tiate this position, the IG points to a comment in the Congres-
sional Record that s 228 "clarifies Congressional intent with
respect to the authority of the IG, reaffirming the IG's ability
and authority to continue to conduct criminal investigations of
parties subject to DOT laws or regulations, whether or not
such parties receive Federal funds from the Department."
145 Cong. Rec. H12874 (daily ed. Nov. 18, 1999); 145 Cong.
Rec. S15211 (daily ed. Nov. 19, 1999). This sparse piece of
legislative history cannot carry the day for the IG.

Prior to the passage of s 228, the statutory and legal
framework defining the IG's authority focused on the IG's
role as an independent and objective investigator of agency
fraud and abuse. These responsibilities contrasted with the
responsibilities delegated to other offices in the DOT which
were in charge of implementation and enforcement of the
motor carrier safety regulations. Within this institutional
framework the IG was not authorized to engage in ordinary
compliance reviews, even those potentially implicating crimi-
nal punishments. The characterization of the MCSIA as
"clarifying" in the Congressional Record does not undermine
this finding. The DOT's attempt to read s 228 as a retroac-
tive authority has no legitimate basis.

A much harder question in this case concerns appellants'
requests for a judicial declaration that s 228 of the MCSIA
did not amend the Inspector General Act to authorize the IG
to conduct investigations of the sort that are at issue in this
case and an injunction barring such criminal investigations in
the future. In other words, appellants ask that we reverse


the District Court's holding that s 228 of the MCSIA created
new authority for the DOT IG. Section 228--for example,
the language sanctioning IG investigations of "fraudulent or
other criminal activity"--is hardly free from ambiguity and it
is far from clear that it expands the authority of the IG as the
District Court found. We need not reach these issues, how-
ever. We agree that the District Court's decision construing
the MCSIA cannot stand, but not for the reasons asserted by
appellants. Rather, we hereby vacate the District Court's
decision insofar as it addresses the scope of the MCSIA,
because the issues raised by appellants regarding the scope of
s 228 are not ripe for review.

The disputed actions taken by the IG in this case occurred
in 1998 under the Inspector General Act. The MCSIA had
not yet been enacted, so there is no evidence before the court
concerning investigations or seizures taken pursuant to the
MCSIA. Appellants claim that the IG's future conduct under
the MCSIA may violate the law; but, of course, this court has
no way of knowing what the DOT IG may do in the future.
The only matters of relevance that are before the court at
this time are the text of s 228 of the MCSIA, the District
Court's construction of the statutory provision, and the par-
ties' differing opinions as to what the new law means. This is
not enough to justify an opinion from this court on the
meaning of s 228, because such an opinion would be purely
"advisory" and thus beyond this court's authority under Arti-
cle III of the Constitution. Cf. Los Angeles v. Lyons, 461
U.S. 95 (1983) (Speculative claims about possible future
harms do not afford a basis for equitable relief.).

There will be no ripe case fit for judicial review until the
Government acts to apply the statute "in a concrete factual
setting." Truckers United for Safety v. Fed. Highway Ad-
min., 139 F.3d 934, 937 (D.C. Cir. 1998) (citing Abbott Labs. v.
Gardner, 387 U.S. 136 (1967), rev'd on other grounds, Califa-
no v. Sanders, 430 U.S. 99 (1977)). It is possible that, since
passage of the MCSIA, the DOT IG has, in practice, properly
exercised its authority. Without any particular action by the


IG before us for review, the question of future relief is not fit
for determination.

In assessing whether a case is ripe for review, we must
consider not only the "fitness of the issues" for judicial
review, but also whether a delay in judicial consideration of
the issues will cause undue "hardship" to appellants. See
City of Houston v. Dep't of Hous. & Urban Dev., 24 F.3d
1421, 1431-32 (D.C. Cir. 1994). The closest appellants come
to raising a claim of hardship is in asserting that the investi-
gations of Florilli, Kistler, K & C and Lone Wolf are "con-
tinuing," implying that appellants persist in being harmed as
a result of the underlying events. However, this harm re-
sults from searches and seizures authorized by the IG in 1998,
not actions initiated by the IG following the enactment of the
MCSIA.

The main hardship that may result to appellants from
delayed review of the IG's proper role under the MCSIA is
the need to file another suit. However, the burden of pursu-
ing future litigation is not enough, by itself, to demonstrate
hardship justifying premature judicial decision-making. See
id. at 1432.

III. Conclusion

Because the DOT IG acted without lawful authority in
investigating appellants and seizing their records pursuant to
the Inspector General Act, the Government is hereby ordered
to return all materials seized during the ultra vires searches
of appellants' premises. We also hereby vacate the District
Court's decision regarding the scope of s 228 of the MCSIA
and dismiss appellants' claims resting on their construction of
the MCSIA; the issues focused on the meaning and future
application of s 228 are not ripe for review.